Employers sometimes need to work with trade unions in order to negotiate with employees in such areas as working conditions, pay and holiday. However, for the union to enter into negotiation with an employer, they must be recognised by them.
The first step is for the union to ask the employer for voluntary recognition. If the employer agrees to this, nothing more need be done – the union is recognised and negotiations can begin.
When the union requests recognition, it must do so in writing to the employer, including:
the name of the union;
which employees will be represented by the union when it’s recognised;
a statement that the union is making the request under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The employer has ten working days to make a response. They have three options open to them:
agree to recognise the union voluntarily;
reject the request;
refuse the initial request but agree to negotiate.
If they take the third option, the employer has twenty working days to come to an agreement with the union regarding which employers are included in the ‘bargaining unit’ and whether the union should be recognised.
If the employer wants to bring in ACAS to help with the negotiations, they have ten days to make that request.
If the employer refuses voluntary recognition, the union can make an application for statutory recognition. There are some basic requirements that must be fulfilled:
a formal application for recognition;
at least 21 workers must be employed by the company;
at least 10 per cent union membership and the union must be likely to get majority support in a ballot;
if the employer has proposed the involvement of ACAS, union consent must have been obtained within ten working days.
The application for recognition is made to the Central Arbitration Committee (CAC) and will be accepted, provided that it meets the following requirements:
The union has sent the employer a copy of the application and any documents needed to support it.
At least ten percent of the proposed bargaining unit are members of the union.
The union is able to produce proof that the majority of employees are in favour of recognition.
Conversely, there are also prohibitions on application for recognition. The union will not be able to apply if:
they have made an application for recognition in the last 3 years;
they aren’t a certified independent union;
another union has been recognised and allowed to represent employees in the bargaining unit;
another union that represents 10% of the employees in the proposed bargaining unit has already made an application for recognition.
Issuing a challenge
A challenge is usually made by the employer if they don’t believe that the union’s recognition application meets the requirements.
The employer will be sent a form by the CAC which needs to be submitted within five working days. The CAC will reply within ten working days. There are three possible outcomes:
they may ask for more information so they can make a decision;
they may reject the union’s application if they agree that the union hasn’t met the requirements;
they may accept the union’s application.
At the point where the CAC accepts the union’s application, the employer will need to begin discussions about who will be included in the bargaining unit, which is the group of employees the union will represent.
The composition of the bargaining unit can be decided by the employer and union or – if agreement is not forthcoming – the CAC will make the decision for them, with reference to the views of the employer and union, the degree to which the unit is compatible with the way that management is carried out and any bargaining arrangements that already exist within the organisation.
When a decision has been made on the composition of the bargaining unit, the CAC will make a decision on whether there needs to be a ballot of employees.
Points to bear in mind.
Employees are protected from any detriment (including dismissal) by their employer because of involvement in trade union activities. This includes the proposal of the recognition of a trade union in the workplace. Employers should note that whilst a 2-year qualifying period is usually required for a dismissal to count as unfair, this is not the case if the dismissal is connected with union activity.
Employers need to remember that even if a union is not recognised, an employee can still be represented by a trade union official at a disciplinary or grievance hearing.